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It arrived only at its perfect and full deConstitutionality.
velopment within the last few ages, and It is never to be lamented when men stands immoveable, by the accumulated are driven to search into the foundation of strength of all its past existence. It came the commonwealth ; as it is necessary for into perfect being, not by revolution, not the conduct of life that the divine and ab- by a change of principles, but by the nastract principles of virtue should have a tive force of an internal life, which impellconscious existence in the intellect, and ed it to throw off a foreign incumbrance, should be frequently agitated and discuss- and stand free in the vigor of independed; so, if we intend to maintain in their ant youth. It is a government of princioriginal purity and force, those ideas of ples, not of prescription, nor of forms. authority, of right, and of obedience, upon Its traditional forms are few; it did not which all government is founded, we must come down to us loaded with the corruptoften reflect, and induce others to reflect ions of former ages, to be maintained by upon them, in their simplicity. It is ne- the timid and condemned by the wise. cessary to revive and fortify the spirit of It is a government of necessity; it arose the Constitution by frequent recurrence to from necessity, and exists by necessity ; it the rights and opinions upon which it is therefore not subvertible while its moral rests ; tracing these to their principles, and conditions exist. But the necessity which casting an historic glance upon those con- gave it birth is not that with which the ditions of society--those exigencies of hu- mathematics are conversant, nor the wants manity—from which they took their rise, and desires of the grosser nature of man. and through which they became appa- The necessity with which our laws are in rent; rights, in our own case, derived accordance is of a moral nature, and can be from a recognition of the imperious neces- found only in the operation of moral causes. sity of freedom to the full development of In the course of history, philosophers our nature; principles, grounded in human observe series of events signifying the exnature, tested by the experience of all | istence and operation of certain divine and time, and suggested as rules of legislation | moral laws, by which the superior destiny from an observation of the evils that arose i of man is distinguished above his physical upon their absence. Ours is not an hypo- and
destiny. Governments thetical government; it was not erected founded like ours upon a recognition of upon an imaginary basis; the first fibres of of justice, of faith, of beneficence, of honits roots can be traced backward into the or, of liberty and of constancy, are imperdarkness of primeval liberty ; its growth | ishable governments; and die only with has been gradual through many centuries. the races which gave birth to them. VOL. IV.
All other governments are liable to re- sense of its own character, and attributes, volution, and to one or both of the and duty, the Supreme Court will declare fruits of revolution, the despotism of a its own incompetency to enact laws or multitude or the despotism of an indi- construct policies. It will say to those vidual.
legislators who attempt to impose their If we fall then into either of these ex- own duties upon its shoulders, “You tremes, it must be when the great majority alone are competent to this decision; it is of those who study the wants of the peo- not for us to express the will of the people, and act for them in the business of ple, or to regulate the public economy. legislation, become so far blinded to the Where there is law, either evident or to moral necessities of those whose opinions be liberally or morally constructed, we can they guide and influence, as to substitute point it out or construct it, but we cannot for them scientific theories, the dreams of make it. When the law is clear and the humanitarianism, or the schemes of their application difficult we will aid you; but own ambition. Fortunately for us, the when the law does not exist, you must number of such citizens is so great, and look for its grounds in the genius of the their equality of will so level to the free people and the necessity of the times, and dom of all, there is little danger but not in our precedents. that all things shall long continue as they be appealed to for the construction of con
Nor can the authority of the Executive It is necessary to resort to the original stitutional law. In cases where neither grounds of our government, not only when law nor precedent can serve as guides, the we propose any alteration in its frame- Executive must indeed consult the spirit work, but whenever the lawfulness of of the nation; but should that system be new measures is contested, upon the argu- pursued—into which of late we have too ment that they are not specifically sanc- much fallen—the electing of a president tioned by the language of the Constitu- for the declared purpose of enforcing contion. A measure once contested upon tested constructions of the Constitution, that argument will be always contested, the day must come when all law shall lie and will remain undecided ; majorities at the mercy of executive construction ; cannot decide upon the sense of the Con- and the executive of to-day must become stitution ; since neither principles nor fun- in that event the source of all power, undamental laws are established by majori- til, after a period of four years, its authorties. New measures, therefore, not clearly ity is annihilated by another executive. unconstitutional, and of which the consti- By allowing the opinion of an executive tutionality or its contrary, remain in per- to have any weight beside that which petual uncertainty and agitation, even in the character of worth and wisdom may courts of law, must be adopted or rejected bring with it, we admit the existence of by the representatives of the people, by a new legislative power, not recognized mere majorities; not by forced construc- by the Constitution ; a legislative power tion, since that is met by counter con- which lessens with its increase the efficacy struction; nor, except for the clear con- of regular legislation, and which must, struction of a law, or the showing of the eventually, absorb everything to itself. spirit of a law, can such questions be re- True it is, the Executive has been entrustferred to the supreme judiciary of the na- ed with a power of forbidding a hasty and tion. Judgment is of no party, and makes clearly unconstitutional legislation ; but no laws; nor does it impose measures or this power was given to the Executive, not recommend policies. Neither laws, nor as a law-making, but only as a regulative forced construetions of laws, establishing function. Legislative bodies may move principles of national economy or policy, precipitately, and illegally, since even their can ever emanate from tribunals appointed existence and conduct is limited by the by the Executive. Under the weight of supreme law of the land ; nor are they such responsibilities the highest court of free themselves from an ambition which justice would lose its character, and be leads them continually to encroach upon come an instrument of faction or of ex- the functions of other members of the sysecutive usurpation. Inspired by a right | tem. It is necessary that every member